50 Cal.App.5th 659
Cal. Ct. App.2020Background
- Size It (plaintiffs) sued ASICS and others for fraud; after a jury verdict for ASICS, ASICS sought costs totaling $384,773.96.
- Major contested cost categories: $34,166.79 for exhibit photocopies/ binders/closing demonstratives; $6,327.47 for defense counsel travel to Japan for three depositions; $29,240 for interpreter fees at two depositions and at trial.
- Size It moved to tax those costs as unlawful or unreasonable; the trial court granted the motion in part, but declined to tax the three categories above, awarding ASICS $303,051.83.
- Size It appealed the trial court’s refusal to tax those categories.
- The Court of Appeal affirmed, holding the trial court did not abuse its discretion and explaining statutory interpretation of Code Civ. Proc. §1033.5 (allowable costs and discretionary awards).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Recoverability of costs for photocopies, exhibit binders, and closing demonstratives not used at trial | Costs for exhibits not used at trial cannot "aid the trier of fact" and thus are not allowable under §1033.5(a)(13) | Pretrial preparation of exhibits/demonstratives is prudently necessary, expedites trial, and is recoverable under §1033.5(a)(13) or discretionary under §1033.5(c)(4) | Court held such costs may be awarded; trial court did not err in allowing them (practical helpfulness/efficiency counts) |
| Travel expenses for defense counsel to attend depositions in Japan (including pre-deposition preparation) | Statute permits travel for only one lawyer to attend a deposition and does not cover travel for pre-depo preparation; therefore costs should be taxed | §1033.5 permits travel to attend depositions; multiple counsel commonly attend; even if not strictly authorized, costs may be allowed in the court's discretion under §1033.5(c)(4) | Court upheld the award; allowing travel for two attorneys and pre-depo preparation was within discretion |
| Interpreter fees for depositions and trial (Oyama and Tamai) | Interpreter fees are limited by §1033.5(a)(12) to indigent/pro bono represented persons; no evidence of indigency here, so fees should be taxed | Interpreter fees are recoverable under §1033.5(a)(3)(B) for witnesses/parties not proficient in English, or alternatively allowed under §1033.5(c)(4) | Court affirmed: record supported that witnesses were not proficient enough in English; deposition and trial interpreter fees were properly awarded |
Key Cases Cited
- Chaaban v. Wet Seal, Inc., 203 Cal.App.4th 49 (describes §1033.5 as the statutory list of allowable costs)
- Applegate v. St. Francis Lutheran Church, 23 Cal.App.4th 361 (allows discretionary awards for unused exhibits in appropriate cases)
- Benach v. County of Los Angeles, 149 Cal.App.4th 836 (supports awarding costs for prudent pretrial exhibit preparation under court discretion)
- Seever v. Copley Press, Inc., 141 Cal.App.4th 1550 (held costs for exhibits not used at trial are not authorized under §1033.5(a)(13))
- Ladas v. California State Automobile Assn., 19 Cal.App.4th 761 (refused fees for exhibits not used at trial)
- LAOSD Asbestos Cases, 25 Cal.App.5th 1116 (counsels against reading restrictions into §1033.5 and advises pragmatic statutory interpretation)